delivered the opinion of the court.

-Was the charge of the court correct?

It must not be overlooked, that this proceeding was had before a justice of the peace, and the demand must be treated as in equity, and stand on a foot the most favorable for the plaintiff. "

The rule laid down in Erwin vs. Bell, 1 Yer. Rep. *41685; in Stump and Cox vs. Estell, Peck’s Pep. 175; in Farris vs. Icomb, and Chilton and Inett’s ex’rs vs. Harrison (in manuscript Sparta, 1834), is, that when a special contract exists, and one party has partly performed, in money or labor, and the time or opportunity for full performance has gone by, he who has been benefited shall refund to that amount; and if he fail, he who has partly performed may abandon the special agreement, if it even-be a sealed instrument, and recover so much as he deserved to have. This rule is too well settled to be called in question, and was appropriately applied by the circuit judge to the facts in the case before the court.

The submission to an arbitration, which was not gone into, could have no effect, is an objection without merits, and must be disregarded.

The judgment of the circuit court will be affirmed.

Judgment affirmed.